A joint project of Radio Nizkor and the International Human Rights Law Clinic at theAmerican University Washington College of Law

Esp - The recent amendment to the Organic Law of the Judicial Power and the closing of the last possible case for the Spanish victims of the WWII extermination camps. (Equipo Nizkor). Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 09May14

The international human rights organization Equipo Nizkor has recently disclosed, for the first time, the relevant information and documents of the Szehinskyj Case. This case was submitted to the National Court in Madrid within the existing proceedings against various members of the German SS Totenkopf who served in the Concentration Camps of Mauthaussen, Sachsenhausen Flossenbürg.

The development of this case and the proceedings as a whole are an example of the problem of impunity in Spain and they should be analysed within the framework of the existing model of impunity and not as a matter of "universal justice".

On 15th March 2014, the Organic Law 1/2014 concerning universal justice entered into force, amending Organic Law 6/1985 of the Judicial Power (LOPJ).

We have reason to believe that the real motive underlying this recent amendment to the LOPJ which limits the
jurisdiction of the Spanish courts and effectively closes several cases, is the opposition to the
above proceedings, known as the "Mauthausen Case". This is the ONLY case which was
procedurally able to proceed to trial and judgement. The fact that this has not happened to
date is the result of a deliberate decision by the Prosecutor's Office of the National Court and the
Judge in the case, as of a year ago the necessary procedural requirements had been met to ensure
that one of the accused was brought onto Spanish territory and was made available to Spanish
justice. (As is well known, there is no system of trial in contempt or in absentia in Spain).

Theodor Szehinskyj served as a SS Totenkopf guard at the Sachsenhausen concentration camp. In
this camp, hundreds of Spanish nationals were imprisoned, including Francisco Largo Caballero,
the historic leader of the Spanish Socialist Workers Party and the General Workers Union. In 1936 and 1937 Caballero served as the Prime Minister of the Second Spanish Republic during the Spanish Civil War.

On 26th February 2013, Judge Ismael Moreno, at the head of Central Investigative Court No. 2 of the National Court, issued an order do indict Theodor Szehinskyj, but instead of ordering an International Arrest Warrant as he had done in respect of other defendants in the same case, he ordered "the communication to the Headquarters of the
Spanish Police and the Civil Guard that they proceed to carry out the search and capture of the
accused" notwithstanding that it is clear from the proceedings that the accused is located in
the United States and "has been the subject of a removal order by the judicial authorities of that
county and could be removed to Spain."

The significance of this is that, at least from the date of the order of indictment against Theodor
Szehinskyj, the National Court could have obtained the handover of the accused to the Spanish
authorities by simply ordering the General Directorate of Consular Affairs to issue a valid travel
document, and there is no doubt of this given the existance of "a written communication of March 2013, whereby
the US Embassy in Spain confirmed (to the Court) that upon receipt by the US authorities of the
corresponding travel document the accused can be removed to Spain". Once the travel
documents had been issued, the handover of the accused could have occurred within
approximately two months.

Instead, on April 14th, 2014, coinciding with the anniversary of the proclamation of the Second Republic in Spain (1931), Judge Ismael Moreno issued a ruling closing the case and transferring the case record to the Criminal Chamber of the National Court, for it to determine whether the present proceedings comply with the new provisions of the LOPJ.

With this recent law, together with the Amnesty Law of 1977, the Law of "Memory" and the doctrinal argument of impunity
existing at all levels of the judicial hierarchy and within almost all the political parties, any opportunity for justice is now closed.

This is the further perfection of what Equipo Nizkor described in its 2004 report as the Spanish model of impunity with all its iniquity, pitilessness and inhumanity.

We should remember that the "Mauthausen case" is based on the Spanish nationality of the
victims and that is not a question of "universal justice" but of "effective judicial protection"...

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EU - The Court of Justice of the EU declares the Data Retention Directive to be invalid. Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 23Apr14.

On April 8th, 2014, the Court of Justice of the European Union ruled that the mass storage of telecommunications data violates the fundamental rights to respect for private life and to the protection of personal data.

The EU Data Retention Directive compelled telephone and Internet companies to retain traffic and location data as well as related data necessary to identify the subscriber or user for the purpose of the prevention, investigation, detection and prosecution of serious crime, such as, in particular, organised crime and terrorism.

The European Court of Justice had to issue a preliminary ruling concerning the validity of Directive 2006/24/CE of the European Parliament and of the Council of 15 March 2006. The request addressed to the European Court has its origin in a case triggered in Ireland by Digital Rights Ireland. The Court joined this case with another request made by the Austrian Constitutional Court concerning the compatibility with the Federal Constitutional Law of the law transposing Directive 2006/24 into Austrian national law.

The Court has found that data retention entails a wide ranging and particularly serious interference with the fundamental right to privacy... "The Court observes first of all that the data to be retained makes it possible, in particular :

to know the identity of the person with whom a subscriber or registered user has communicated and by what means,

to identify the time of the communication as well as the place from which that communication took place and

to know the frequency of the communications of the subscriber or registered user with certain persons during a given period."

"Those data, taken as a whole, may provide very precise information on the private lives of the persons whose data are retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, activities carried out, social relationships and the social environments frequented."

"The Court takes the view that, by requiring the retention of those data and by allowing the competent national authorities to access those data, the directive interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data."

Though the Directive has now been struck down, the issue will remain live in all the countries who have passed domestic law to implement the data retention mass surveillance regime.

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USA - State of Exception and the CIA's extra-judicial rendition and interrogation program. Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 03Apr14

The United States is implicated in a case currently pending before the European Court of Human Rights concerning two Guantánamo detainees who claim to have been tortured in Poland after an extraordinary rendition by the Central Intelligence Agency (the "CIA")

The applicants are Abd Al Rahim Hussayn Muhammad Al Nashiri, a Saudi Arabian national of Yemeni descent who was born in 1965; and Zayn Al-Abidin Muhammad Husayn, also known as Abu Zubaydah, a stateless Palestinian, who was born in 1971 in Saudi Arabia. Both men are currently detained in the Internment Facility at the U.S. Guantanamo Bay Naval Base in Cuba...

"Both applicants allege that they were victims of 'extraordinary renditions' by the CIA, that is, of apprehension and extrajudicial transfer to a secret detention site in Poland with the knowledge of the Polish authorities for the purpose of interrogation, during which they were tortured. Both men state that in December 2002 they were taken to Poland on board the same 'rendition plane'."

Both detainees' submissions are based in the so-called "Marty Reports", prepared by Swiss Senator Dick Marty, in 2006, 2007 and 2011, as rapporteur for the investigation conducted by the Parliamentary Assembly of the Council of Europe into allegations of secret detention facilities being run by the CIA in several Member States; they are also based on a report prepared by the CIA inspector general in 2004 on 'counterterrorism detention and interrogation activities' between September 2001 and October 2003. Their submissions also refer to a 2007 report by the International Committee for the Red Cross on the treatment of 'high value detainees' in CIA custody...

"The Marty Reports detail an intricate network of CIA detention and transfer in certain Council of Europe States. Among other things, the reports identify the secret detention centre in Poland as being located in the Stare Kiejkuty intelligence training base near the town of Szczytno in Northern Poland."

Mr Al Nashiri’s and Mr Husayn's complaints before the European Court of Human Rights relate to three principal issues: their torture, ill-treatment and incommunicado detention in Poland while in US custody; their transfer from Poland; and, Poland’s failure to conduct an effective investigation into the events."

"More recently, evidence has emerged that the CIA paid $15 million in cash to the intelligence service of Poland in order to make use of a secret detention site there to interrogate al-Qaeda suspects..."

Also, the Senate Intelligence Committee has produced a 6,300-page study, not available to the public yet, on the CIA Detention and Interrogation Program. Its Chairman, Dianne Feinstein, spoke on the Senate floor on 11 March 2014 in order to clarify the information that was published by the press concerning the CIA's intrusion and search of the Senate Select Committee's computers as well as the committee's acquisition of a certain internal CIA document known as the Panetta Review.

The debate surrounding the CIA's interrogation program is being revisited...

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IACHR/Sur - The Kaliña and Lokono Peoples case reflects the structural problem of lack of recognition of juridical personality and collective property of indigenous peoples. (Inter-American Commission on Human Rights - IACHR). Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 06Mar14

The Inter-American Commission on Human Rights filed an application with the Inter-American Court of Human Rights in a case opposing the Kaliña and Lokono Peoples and the State of Suriname.

"The facts of this case involve a series of violations of the rights of the members of eight communities of the Kaliña and Lokono indigenous peoples of Suriname's Lower Marowijne River. The violations have to do with an existing legal framework that prevents recognition of the indigenous peoples' juridical personality, a situation that to this day continues to prevent the Kaliña and Lokono peoples from being able to protect their right to collective property.

In addition, the State has failed to establish the regulatory foundations that would allow for recognition of the right to collective ownership of the lands, territories, and natural resources of the Kaliña and Lokono indigenous peoples.

This lack of recognition has been accompanied by the issuance of individual land titles to non-indigenous persons; the granting of concessions and licenses to carry out mining operations in part of their ancestral territories; and the establishment and operation of three nature reserves in part of their ancestral territories..."

"Moreover, neither the granting and continued existence of mining concessions and licenses nor the establishment and ongoing operation of the nature reserves have been submitted to any consultation process designed to obtain the prior, free, and informed consent of the Kaliña and Lokono peoples.

All these developments have occurred in a context devoid of judicial protection, since no effective remedies exist in Suriname by which indigenous peoples can claim their rights.

The case was sent to the Inter-American Court on January 26, 2014, because after an extension was granted to the State of Suriname to carry out the Commission's recommendations, the Inter-American Commission had not received substantive information as to concrete progress in their implementation..."

"This case reflects a structural problem area involving a lack of recognition in domestic law of the juridical personality and right to collective property of indigenous peoples in Suriname..."

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USA - U.S. Supreme Court Dismisses Lawsuit Against Shell in Nigeria. (CorpWatch, American Society of International Law). Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 02May13

On April 17th, 2013, in a unanimous ruling, the U.S. Supreme Court dismissed a lawsuit against Shell in Nigeria.

The lawsuit was brought by Esther Kiobel against the company for aiding and abetting the Nigerian government who executed her husband and 10 other activists in the Ogoni region of the Niger Delta.

Pratap Chatterjee, Executive Director of CorpWatch, in an article about this decision, explains that "the ruling effectively blocks other lawsuits against foreign multinationals for human rights abuse that have occurred overseas from being brought in U.S. courts."

"Kiobel v. Royal Dutch Petroleum Co. (Shell) was brought under the Alien Tort Statute, a U.S. law dating back to 1789, originally designed to combat piracy on the high seas - that has been used during the last 30 years as a vehicle to bring international law violations cases to U.S. federal courts.

Lawyers began using the Alien Tort Statute (ATS) as a tool in human rights litigation in 1979, when the family of 17-year-old Joel Filartiga, who was tortured and killed in Paraguay, sued the Paraguayan police chief responsible...

The new ruling limits the law to U.S citizens and entities.

'Corporations are often present in many countries and it would reach too far to say mere corporate presence suffices,' wrote John Roberts, the chief justice of the Supreme Court, in the majority opinion. 'There is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms.'

Stephen Breyer, another of the nine judges, agreed with Roberts in the decision but left the door open for some lawsuits. 'I would find jurisdiction under this statute where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’' conduct substantially and adversely affects an important American national interest,' wrote Breyer in a separate legal opinion. '(T)hat includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.'

To date no substantial lawsuits against multinationals for abuses overseas has been won on ATS grounds, although some have settled or plea bargained. In 1996 Doe v. Unocal, a lawsuit filed by ethnic Karen farmers against Unocal (now owned by Chevron) set a new precedent when a U.S. federal court ruled that corporations and their executive officers could be held legally responsible for crimes against humanity...

Many activists say that the decision will set back human rights causes... Other lawyers drew a measure of hope from the fact that the Supreme Court decision did not exclude all lawsuits against multinationals overseas in U.S. courts.

'This ruling is not a grant of immunity from liability,' write the lawyers of the Center for Constitutional Rights who won the Filártiga case. '(T)hose cases brought against defendants, including corporations, whose actions 'touch and concern the territory of the United States... with sufficient force' should remain on notice they can still be held accountable for their abuses outside the U.S."

As Curtis Bradley, Professor at Duke Law School, writes for the American Society of International Law's Insight, "Nevertheless, ATS litigation will almost certainly have a much narrower scope going forward. Of course, the presumption against extraterritoriality is only a presumption, and it is open to Congress to amend the ATS to make it expressly extraterritorial if it wishes to do so."

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USA - The Justice Department's White Paper on Targeted Killing of US Citizens. Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 24Apr13

On February 8th, 2013, the Department of Justice released –several days after it had been leaked to the press– an official copy of its White Paper on lethal targeting of Americans to Freedom of Information Act requesters, including the Federation of American Scientists, which filed a FOIA request on February 6th, 2013, and the online news publication Truthout.org, which did so on August 10, 2012.

"The 16-page memo, entitled 'Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa’ida or An Associated Force', provides new details about the legal reasoning behind one of the Obama administration’s most secretive and controversial polices: its dramatically increased use of drone strikes against al-Qaida suspects abroad, including those aimed at American citizens."

"The document is based on a still-classified memo on targeted killings of U.S. citizens prepared by the Justice Department's Office of Legal Counsel. It does not discuss any specific target and emphasizes that it does not go into the specific thresholds of evidence that are deemed sufficient."

"At its heart, the memo contends that killing a U.S. citizen who is a "senior operational leader in al-Qaeda or an associated force" is lawful under three conditions:

(1) [A]n informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States;
(2) capture is infeasible and the United States continues to monitor whether capture becomes feasible; and
(3) the operation would be conducted in a manner consistent with applicable law of war principles."

"It adopts an elastic definition of an "imminent" threat, saying it is not necessary for a specific attack to be in process when a target is found if the target is generally engaged in terrorist activities aimed at the United States. And it asserts that courts should not play a role in reviewing or restraining such decisions..."

Steven Aftergood, from the Project on Government Secrecy of the Federation of American Scientists, informs that "the belated release of the White Paper may have been dictated by tactical considerations intended to evade an ACLU FOIA lawsuit for related records", as suggested by Marcy Wheeler at Emptywheel.

This program collects the reactions of civil rights organizations such as the Center for Constitutional Rights and the American Civil Liberties Union, as well as the comments of some scholars, like Marjorie Cohn (Professor of Law at Thomas Jefferson School of Law, San Diego, CA) or David Kaye (a clinical professor of law at UC Irvine School of Law and a State Department lawyer from 1995 to 2005), who analyzes the international law issues addressed or implicated by the White Paper...

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IACHR/Ecu - The Duty to Consult in the Inter-American System: Legal Standards after Sarayaku. (Lisl Brunner and Karla Quintana for the American Society of International Law). Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 28Feb13

"In a decision issued on June 27, 2012, the Inter-American Court of Human Rights declared the international responsibility of the State of Ecuador for failing to consult the Sarayaku indigenous community when it granted oil concessions in the community's ancestral lands...

The Court held that the duty to consult with indigenous communities about legal or administrative measures that will affect them directly has become a general principle of international law...

In 1992, Ecuador confirmed the Sarayaku's ancestral title by awarding an undivided parcel of land in the Amazonian region to twenty-eight communities along the Bobonaza River, among them the Sarayaku Kichwa indigenous people... On July 26, 1996, Ecuador and an Argentinean oil company (Compañía General de Combustibles ("CGC")) signed the contract for exploration of oil for that block, 65% of which was within the ancestral territory of the Sarayaku community...

Between 2002 and 2003, the CGC’s activity within the block advanced 29% into the Sarayaku territory, destroying part of their Kausa Sawach (living rainforest). In that period, the CGC placed approximately 1433 kg of explosives in wells, where they remain buried. In February 2003, the CGC suspended the seismic prospecting work for force majeure...Neither the Sarayaku nor the neighboring communities were consulted by Ecuador regarding the oil exploitation project."

"The most contentious issue before the Inter-American Court was the date on which the state's obligation to consult with the indigenous community attached."

The Court stated that "while Ecuador had the 'duty [before the ratification of the ILO Convention 169] to ensure the Sarayaku people the right to enjoyment of their property as their communal tradition, taking into account the particularities of their indigenous identity in relation to their territory,' it had international obligations regarding the right to consultation 'at least' since it ratified that convention and enacted the constitutional reforms of 1998. Finally, the Court added, basing its reasoning on a Committee of Experts of the ILO, 'at least' from the date of ratification of the Convention No. 169, Ecuador should have applied the provisions of the Convention when implementing the project, even if the project started before ratification..."

"According to the Court, the obligation to consult is 'a general principle of international law.' The Court suggested that, regardless of whether states have ratified specific international conventions, 'there is currently a clearly recognized right to consultation' based on developments within the Inter-American system on the property rights of indigenous peoples, other international instruments, and case-law of the highest domestic courts in the Americas.

The Court was explicit in explaining what is required to ensure indigenous and tribal peoples' right to consultation. The Court stated that the obligation to consult is the responsibility of the state... The Court also considered that the consultation process.. should be conceived as 'a true instrument of participation,' done in 'good faith,' with 'mutual trust' and with the goal of reaching a consensus..."

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ICC - Frequently asked questions on the amendments to the Rome Statute of the ICC on the Crime of Aggression ("The Kampala Amendments"). (Global Institute for the Prevention of Aggression, Principality of Liechtenstein). Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 01Feb13

At the 2010 Kampala Review Conference of the Rome Statute of the International Criminal Court, States Parties adopted amendments to the Statute on the Crime of Aggression. They adopted a definition of the crime of aggression, contained now in a new article 8 bis to the Rome Statute.

The States Parties thus created a new mechanism to enforce the most important rule of international law: the prohibition on illegal use of force under the United Nations Charter.

In November 2010, the Secretary-General of the United Nations circulated the amendments in order to enable States Parties to ratify or accept them. 30 ratifications, as well as a further decision by States Parties in 2017, are required for the ICC to take up this new function.

As of January 31st, 2012, four States Parties have ratified the amendments on the Crime of Aggression: Liechtenstein, Samoa, Trinidad and Tobago and Luxembourg...

In this FAQ you will find answers to questions such as:

How has the crime of aggression been defined?

How was the controversial question of the role of the Security Council resolved?

How do the amendments on aggression affect non-States Parties to the Statute?

Article 15 bis allows any State Party to opt-out of the Court's jurisdiction over the crime of aggression. What are the reasons behind this provision?

What about new States Parties to the Rome Statute? Do they have a choice of ratifying the "old" or the "new" Statute?
or

What are the policy reasons for which any State would ratify the amendments on the crime of aggression?

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Sen/Bel - The ICJ finds that Senegal must submit the case of Mr. Hissène Habré to its competent authorities for the purpose of prosecution, if it does not extradite him. Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 13Nov12.

The International Court of Justice (ICJ), the principal judicial organ of the United Nations, delivered on July 20th, 2012 its Judgment in the case concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal).

The present case before the Court started on February 19th, 2009, when Belgium instituted proceedings against Senegal in respect of a dispute concerning "Senegal's compliance with its obligation to prosecute Mr. Hissène Habré, former President of the Republic of Chad, for acts including crimes of torture and crimes against humanity... or to extradite him to Belgium for the purposes of criminal proceedings". In its Application, Belgium based its claims on the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, as well as on customary international law.

"Before pronouncing on the merits, the Court describes the historical and factual background to the case... It notes that after taking power on 7 June 1982 at the head of a rebellion, Mr. Hissène Habré was President of the Republic of Chad for eight years, during which time large-scale violations of human rights were allegedly committed. Mr. Habré was overthrown on 1 December 1990. After a brief stay in Cameroon, he requested political asylum from the Senegalese Government, a request which was granted. He then settled in Dakar, where he has been living ever since.

From 25 January 2000 onwards, a number of proceedings relating to crimes alleged to have been committed during Mr. Habré’s presidency were instituted before both Senegalese and Belgian courts... On 19 September 2005, the Belgian investigating judge issued an international warrant in absentia for the arrest of Mr. Habré" and "requested the extradition of Mr. Habré from Senegal. Three further requests for extradition have since been transmitted to the Senegalese authorities by Belgium."

The Court considered "that Senegal's duty to comply with its obligations under the Convention cannot be affected by the decision of 18 November 2010 of the ECOWAS Court of Justice [Court of Justice of the Economic Community of West African States], which found that Senegal's amendment to its Penal Code in 2007 might be contrary to the principle of non-retroactivity of criminal laws and that proceedings against Hissène Habré should be conducted before an ad hoc court of an international character." The Court further observed that, "under Article 27 of the Vienna Convention on the Law of Treaties, which reflects customary law, Senegal cannot justify its breach of the obligation provided for in Article 7, paragraph 1, of the Convention against Torture by invoking provisions of its internal law."

In its Judgment, which is final and binding on the Parties, the Court stated that "Senegal was in breach of its obligation under Article 6, paragraph 2, to make a preliminary inquiry into the crimes of torture alleged to have been committed by Mr. Habré, as well as of the obligation under Article 7, paragraph 1, to submit the case to its competent authorities for the purpose of prosecution. In failing to comply with its obligations under those provisions, Senegal has engaged its international responsibility. Consequently, Senegal is required to cease this continuing wrongful act, in accordance with general international law on the responsibility of States for internationally wrongful acts. The Court concludes, therefore, that Senegal must take, without further delay, the necessary measures to submit the case to its competent authorities for the purpose of prosecution, if it does not extradite Mr. Habré".

Following the ICJ's decision, Senegal seems to have renewed negotiations to create a special court to try Habré, as mandated by the ECOWAS Court in a November 18th, 2010 ruling. In said ruling, in an inconsistent manner, the ECOWAS Court concluded "that any other option, including... a domestic trial, would be in violation of the principle of non-retroactivity", which is in itself at odds with the fact that crimes against humanity and war crimes were already criminalized by international law at the moment when the facts at issue were allegedly committed by Habré.

As Valentina Spiga puts it in her article "Non-retroactivity of Criminal Law: A New Chapter in the Hissene Habre Saga": "The [ECOWAS] Court's finding would not only prove unprecedented and potentially unfair, but also erroneous. As a matter of fact, in the period when the facts allegedly committed by Habré took place, the criminalization of [...] crimes against humanity, [...] and torture was set out at the level of international treaty and customary law".

This program has been prepared with information provided by the press services of the International Court of Justice, the article "Non-retroactivity of Criminal Law: A New Chapter in the Hissene Habre Saga" written by Valentina Spiga for the Oxford Journal of International Criminal Justice and Equipo Nizkor.

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USA - Supreme Court Urged to Uphold Review of Wiretapping Programs. (Federation of American Scientists' Project on Government Secrecy, Electronic Privacy Information Center). Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 18Oct12.

"In its new term that began on October 1st, 2012, the U.S. Supreme Court will hear arguments over whether to affirm the right of journalists and human rights organizations to challenge the constitutionality of the Foreign Intelligence Surveillance Act (FISA) Amendments Act, or FAA.

The FISA Amendments Act authorizes the collection of a broad swath of public communications without a warrant (though not the intentional targeting of the communications of any particular U.S. person). As such, critics say, it jeopardizes freedom of communication with individuals abroad.

At issue is whether the plaintiffs, represented by the American Civil Liberties Union, have the 'standing' to bring the case. A lower court said they did not, but an appeals court said they did. It will be up to the Supreme Court to decide the case, which is captioned Amnesty et al v. Clapper.

The Electronic Privacy Information Center (EPIC) filed an amicus brief urging the Court to affirm standing on grounds that the plaintiffs have established a reasonable concern about the security of their communications, and that existing oversight mechanisms are inadequate."

"At issue in Clapper is whether a group of journalists, attorneys, and non-profit organizations can challenge the US government's interception of their international communications...

The Clapper case tests whether economic and professional costs related to the reasonable fear of being monitored under the Foreign Intelligence Surveillance Act constitute an injury sufficient to give the plaintiffs 'standing' to challenge the law under Article III of the US Constitution. The case also has broad implications for public oversight of surveillance activity...

EPIC's amicus brief for the Supreme Court argues that the government's ability to collect Americans' international communications is nearly 'unbounded,' and that the public may 'reasonably' fear that their private communications will be collected under FISA due to the lack of adequate public reporting and oversight."

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USA - US Supreme Court unanimously holds that the warrantless use of a GPS tracking device by the police violated the Fourth Amendment. (Electronic Privacy Information Center - EPIC). Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 11Apr12.

On January 23rd, 2012, the Supreme Court unanimously held in U.S. v. Jones that the warrantless use of a GPS tracking device by the police violated the Fourth Amendment.

The Court said that a warrant is required where, as here, the government obtains information by physically intruding on a constitutionally protected area, like a car.

The questions presented were:

1) Whether the warrantless use of a tracking device on petitioner's vehicle to monitor its movements on public streets violated the Fourth Amendment.

2) Whether the government violated respondent's Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.

The government engages in this investigatory technique frequently, and the federal circuits are divided on whether the practice violates the Fourth Amendment...

Justice Scalia delivered the Opinion of the Court, joined by Justices Kennedy, Roberts, Thomas, and Sotomayor, which held that the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a search under the Fourth Amendment.

The majority opinion made clear that the Government's physical occupation of private property for the purpose of obtaining information, would have been considered a search within the meaning of the Fourth Amendment when it was adopted.

Justice Scalia stressed that the holding, while narrow, made clear that the Fourth Amendment, at a minimum, protects from trespassory government searches...

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OECD - A comment on the 2011 update of the OECD Guidelines for Multinational Enterprises. (Jernej Letnar Cernic for the American Society of International Law). Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 19Mar11.

"On May 25, 2011, on the occasion of the 50th anniversary of the Organisation for Economic Co-operation and Development ('OECD'), the OECD Ministerial Council adopted an updated version of the OECD Guidelines for Multinational Enterprises.

This is the fifth time they have been updated since being adopted in 1976. The Guidelines have been adopted by the thirty-four OECD member states as well as Argentina, Brazil, Colombia, Egypt, Latvia, Lithuania, Morocco, Peru, and Romania. [...]

They will apply to corporations registered in OECD member states when operating not only in OECD states but also worldwide.

The Guidelines are not a binding document but are recommendations 'by governments covering all major areas of business ethics, including corporate steps to obey the law, observe internationally-recognised standards and respond to other societal expectations.' [...]

The 2011 update brings several changes to the OECD Guidelines, particularly in the area of human rights.

The added chapter on human rights confirms that the Guidelines apply to corporations operating in 'all sectors of the economy.' It also reaffirms that states have primary obligations to protect human rights, including in the horizontal relationship between private actors.

The chapter’s obligations for multinational enterprises are in line with the framework developed by Professor John Ruggie, former UN Special Representative on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises.

Thus, both states and enterprises 'should' respect human rights 'within the framework of internationally recognised human rights, the international human rights obligations of the countries in which they operate,' including domestic human rights obligations. [...]

More specifically, business enterprises should “prevent or mitigate adverse human rights impacts that are directly linked to their business operations, products or services by a business relationship, even if they do not contribute to those impacts.”

This provision implies that such conduct is only a recommendation and encouragement for business enterprises, not a requirement. [...]

The Guidelines also include a new, improved procedural guide on implementation under the National Contact Points. National Contact Points monitor compliance of business enterprises with the Guidelines... The updated Commentary also includes a new provision on the role of the international network of non-governmental organizations—OECD Watch.

As a conclusion, the major weakness of the OECD Guidelines is their unenforceability. The 2010 Update fails to address this issue... [T]he new system does not advance the rights of victims. Similarly, the OECD Watch notes the 'update’s failure to clarify the National Contact Point's role in making determinations on the observance of the Guidelines when mediation has failed.' [...]

The OECD Guidelines’ protection and promotion suffers generally from a lack of effective enforcement."

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USA - U.S. Anti-Corruption Statute at Risk. (EarthRights International). Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 30Jan12.

In view of the current efforts in Washington, D.C., to amend the Foreign Corrupt Practices Act (FCPA), a law that forbids U.S.-based companies from bribing foreign officials, over 30 civil society organizations and socially responsible investors sent letters to all U.S. House and Senate members on January 12th, 2012, urging them to reject proposals to amend and weaken the Foreign Corrupt Practices Act (FCPA).

"This letter was drafted in response to intense lobbying by the U.S. Chamber of Commerce, who reportedly spent $700,000 in 2011 in efforts to cut back on anti-bribery protections found in the law.

Based on this intense lobbying effort, legislators on both sides of the aisle and in both Houses of Congress are considering introducing legislation that would restrict U.S. federal prosecutors' ability to investigate and punish foreign bribery.

The legislators' proposals range from the wholesale adoption of the Chamber's proposals – which would shield companies from liability for the acts of their subsidiaries, allow the bribery of certain types of government agents, and reward willful ignorance of the law – to more modest amendments that would seek sharper, narrower definition of important terms and provide a minimum threshold under which bribery would not be prosecutable.

Even these less extreme efforts, however, would open the FCPA to the unpredictable horse-trading of congressional politics and turn a sterling record of U.S. leadership in the global fight against corruption on its head.

Most glaringly, none of the proposed amendments would, as their proponents suggest, provide greater legal certainty or cost savings to U.S. businesses.

Profs. David Kennedy and Dan Danielsen, the authors of a new report entitled Busting Bribery: Sustaining the Global Momentum of the Foreign Corrupt Practices Act, explain that the FCPA has played an important role in combatting bribery on a global scale and provided a level playing field for U.S. businesses.

The Chamber's proposed amendments, far from being 'modest' or aimed at 'restoring the balance,' would badly undercut anti-corruption enforcement efforts and provide what Prof. Danielsen called a "license to commit intentional acts of bribery.'

Moreover, the proposed amendments provide standards that are no clearer than those currently in use. And they would not in any event help to streamline companies' compliance programs, as stricter standards than the FCPA are already in place in other countries, like the United Kingdom, and compliance programs are generally geared toward the most exacting standards to which a company is subject..."

In their letter, the organizations stress that "This would harm our ability to bring other nations up to the emerging global standard set forth in the United Nations Convention Against Corruption, a standard that has arisen in part because of the FCPA itself. Such amendments would also have the effect of negatively impacting democratic principles and human rights in countries around the world as the fight against corruption is also a fight to ensure the promotion and protection of human rights."

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USA/EU - The proposed EU-US Passenger Name Record (PNR) agreement breaches data protection, due process and other fundamental rights. Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 30Jan12.

On 17 November 2011, U.S. and EU officials initialled a proposed agreement to authorize airlines to forward passenger name record data to the U.S. Department of Homeland Security (DHS).

Although the agreement cannot take effect without the approval of the European Parliament and the Council, the Members of the European Parliament (MEPs) could read the proposed agreement only in a sealed room where they could not take notes or make copies.

The complete text on which the European Parliament will vote has finally been made public, revealing a failure to address the concerns raised by the Parliament and continued shortfalls in data protection, due process, and protection of fundamental rights.

In its resolution of 5 May 2010, the Parliament said that the Passenger Name Record (PNR) agreement should take the form of a treaty, recognize the fundamental right to freedom of movement, prohibit the use of PNR data for data mining or profiling, and take into consideration "PNR data which may be available from sources not covered by international agreements, such as computer reservation systems located outside the EU."

The proposed agreement does not meet these criteria, and does not mention any of these issues...

In view of the upcoming vote on the EU-USA PNR Agreement, the Austrian Organization for the Use of the Internet and NoPNR.org, with the endorsement, among others, of The Identity Project, Friends of Privacy USA, Center for Financial Privacy and Human Rights, Statewatch and Privacy International, sent an Open Letter to the European Parliament asking its Members to consider the following issues for their decision on the EU-US PNR Agreement:

The proposed agreement will not result in improved legal security for citizens

There is no access control or access logging

The proposed agreement does not meet the conditions set by the European Parliament

There is no appropriate information to travelers

This program has been prepared with information provided by the Electronic Privacy Information Center, European Digital Rights, The Identity Project and StateWatch.

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USA/EU - "Outside the United States, Extraordinary Rendition on Trial". (Alka Pradhan for the American Society of International Law). Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 16Dec11.

"Three pending cases before the European Court of Human Rights highlight allegedly illegal acts committed by European countries in connection with the U.S. extraordinary rendition program.

The first, filed by Khalid El-Masri in September 2009, claims unlawful abduction and mistreatment by the Macedonian Ministry of the Interior.

The second was filed by Abd Al-Rahim al Nashiri for alleged mistreatment during his detention at a secret prison (“black site”) in Poland...

The third, most recent case was filed against Lithuania by Zayn al-Abidin Muhammad Husayn (“Abu Zubaydah”) for alleged secret detention and torture by CIA agents committed at a Lithuanian black site...

El-Masri’s petition alleges that Macedonia violated Article 3 (prohibition of torture or inhuman or degrading treatment or punishment) of the European Convention on Human Rights by failing to intervene during his torture and inhuman treatment by CIA agents in Macedonia; by allowing him to be transported to Afghanistan with the knowledge that he would be tortured and inhumanly treated at the destination; and by failing to investigate his arrest, detention, and transfer to the CIA by Macedonian authorities.

Additionally, El-Masri claims that his detention by Macedonian authorities for twenty-three days, along with his transfer to CIA agents, violated his right to liberty and security of person (Article 5), and that the failure by the Macedonian criminal courts to hear his case violated his right to remedy guaranteed by Article 13 of the Convention.

Regarding Al Nashiri, his petition alleges violations of Articles 2 (right to life), 3 (prohibition of torture or inhuman or degrading treatment or punishment), 5 (liberty and security of person), 8 (right to private and family life), 10 (freedom of expression), and 13 (right to remedy) of the Convention, and Protocol 6 to the Convention (abolition of the death penalty)...

If the Court accepts El-Masri’s and/or al Nashiri’s applications, both the applicants and the member states will be invited to present their claims before the Court. Should the Court find that a member state has violated the Convention, it may issue a declaratory judgment, order payment of damages and legal costs, or implement other measures of reparation.

Chamber judgments may be appealed to the “Grand Chamber,” whose judgments are final. Because the United States is not a party to the European Court of Human Rights, it is not named in the applications. However, if the United States decides to participate in the proceedings, the Court has the discretion to allow a third party to intervene in the form of written comments..."

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UN - Description and background of the UN Guiding Principles on Business and Human Rights. (John H. Knox for the American Society of International Law, 01Aug11). Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 16Dec11.

On June 16, 2011, the United Nations Human Rights Council adopted the Guiding Principles on Business and Human Rights.

This program, based on an article by John Knox for the American Society of International Law, "describes the background to the Guiding Principles, the Principles themselves, and the Council's decision to endorse them".

"Large corporations that operate across national boundaries might seem to be a natural subject for international regulation. Nevertheless, the United Nations has struggled for years to develop corporate standards. Negotiation of a Draft Code of Conduct for Transnational Corporations in the 1970s and 1980s proved so contentious that the effort was eventually abandoned. In 1999, then UN Secretary-General Kofi Annan launched the Global Compact, an effort to encourage corporations to abide by basic principles on human rights, labor, environmental protection, and corruption. Although thousands of businesses around the world have agreed to participate in the Global Compact, its effectiveness is limited by its voluntary nature and the generality of its principles.

In 2003, the UN Sub-Commission on the Promotion and Protection of Human Rights, a group of independent experts, proposed that the Human Rights Commission, the predecessor to the Human Rights Council, adopt Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights.

The Draft Norms provided that virtually every human right gives rise to a wide range of duties on virtually every corporation... [I]f adopted by the Commission the Norms could have become the basis for a later binding instrument or influenced the development of customary international law.

But the Draft Norms proved to be controversial. While human rights groups strongly supported them, most corporations opposed them, and the governments on the Human Rights Commission decided not to adopt them.

Instead, the Commission requested the Secretary-General in 2005 to appoint a special representative on human rights and transnational corporations and other business enterprises, with a mandate to clarify existing standards and elaborate on the role of states in effectively regulating corporations. Annan named John Ruggie...

From the outset of his tenure as Special Representative, Ruggie made clear that he would take a different approach from that of the Draft Norms. He criticized the Norms’ “exaggerated legal claims” that human rights law directly imposes a wide spectrum of duties on corporations.

Instead, he took the position that, with the potential exceptions of “the most heinous human rights violations amounting to international crimes, including genocide, slavery, human trafficking, forced labor, torture, and some crimes against humanity,” human rights law does not currently impose direct obligations on corporations or any other non-state actors..."

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UN - Despite the reforms introduced by the UN Security Council, due process guarantees remain unsatisfactory when listing individuals or entities as terrorists. Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 30Nov11.

On 17 June 2011, the UN Security Council voted unanimously to pass two resolutions which would reform the Al-Qaida and Taliban sanctions regime.

Security Council resolutions 1988 and 1989 create two separate sanctions regimes, one for Al-Qaida and another for the Taliban. Up until this point, there has only been one sanctions regime to deal with both groups, established under Security Council Resolution 1267 in 1999...

This change lays the groundwork for de-listing members of the Taliban to participate in the so-called reconciliation efforts in Afghanistan.

The UN special Rapporteur on human rights and counter-terrorism at that time, Martin Scheinin, said the changes to the sanctions regime do not resolve fundamental deficiencies throughout the listing and de-listing process and exacerbates other human rights concerns.

In his statement the Rapporteur says that "The terrorist blacklist has been subject to consistent and growing criticism, including by certain judicial bodies and the Human Rights Committee, for its human rights shortcomings. Issues of fair trial and due process, right to privacy, freedom of movement and right to property have been raised and litigated".

Despite the reforms, the Special Rapporteur has maintained the position that the procedures for terrorist listing and delisting by the 1267 Committee of the Security Council do not meet international human rights standards concerning due process or fair trial.

Therefore he takes the view that as long as proper due process is not guaranteed at the United Nations level when listing individuals or entities as terrorists, national (or European Union) courts will need to exercise judicial review over the national (or European) measures implementing the sanctions...

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UN/EU - Time to Rethink Terrorist Blacklisting. (Statewatch, Jan11). Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 29Nov11.

"The terrorist proscription regimes enacted by the United Nations (UN) and the European Union (EU) after the attacks of 9/11 have been seriously undermined by growing doubts about their legality, effectiveness and disproportionate impact on the rights of affected parties. [...]

Ostensibly, these 'smart sanctions' (which target groups and individuals rather than whole populations) are designed to disrupt the activities of terrorist groups by criminalising their members, cutting off their access to funds and undermining their support.

In practice, however, far too many people have been included in national and international terrorism lists. At the same time, they have been systematically denied the possibility of mounting a meaningful defence to the allegations against them. Moreover, many listings are clearly politically or ideologically motivated, undermining genuine counter-terrorism efforts and paralysing conflict resolution efforts.

The UN blacklisting regime stems from UN Security Council Resolution 1267, which created the first list of alleged terrorists "associated with Osama bin Laden, the Taliban and Al-Qaeda". [...]

The EU's terrorist lists stem from the measures it took to transpose Resolution 1373 into EU law and currently stands at 57 individuals and 47 organisations. In addition to the UN and EU lists, many states have adopted domestic blacklists, massively expanding the net of criminalisation.

Whereas the EU has adopted a particularly broad definition of ‘terrorism’, the UN has failed to reach such an understanding, despite decades of deliberation. UN Security Council Resolution 1373 thus effectively outsources the definition of terrorism to nation states, encouraging the criminalisation of groups on the basis of geopolitical, foreign policy or diplomatic interests.

The criminalisation of self-determination movements that has resulted has transformed the migrant and Diaspora communities that support them into ‘suspect communities’ and obstructed peace processes aimed at resolving such conflicts.

There is now an irrefutable body of expert legal opinion that views international proscription regimes as incompatible with the most basic standards of due process. The adverse and unacceptable impact of the sanctions on fundamental human rights is also abundantly clear and systemic violations have been recognised repeatedly in judicial proceedings, particularly within Europe.

Listing decisions are usually based on secret intelligence material that neither blacklisted individuals nor the Courts responsible for reviewing the implementation of the lists will ever see. Needless to say, affected parties cannot contest the allegations against them (and exercise their right to judicial review) if they are prevented from knowing what the allegations actually are..."

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Icc/Cpi - ICC Rome Statute amended at Review Conference in Kampala so as to include a definition of the crime of aggression. (Assembly of States Parties to the ICC; Prof. Willian Schabas). Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 05Feb11

On 11 June 2010, the Review Conference of the Rome Statute of the International Criminal Court (ICC) concluded in Kampala, Uganda, after meeting for two weeks, from 31 May to 11 June.

The Review Conference consisted of a meeting of the States Parties to the Rome Statute primarily to consider amendments to the Statute. It toke place pursuant to a requirement under article 123(1) of the Rome Statute that a conference to consider amendments be held seven years after the coming into force of the Statute.

The Review Conference was conducted on a two-track basis, namely: the amendment track and the stocktaking track.

Under the amendment track, States Parties considered limited and specific amendments to the Rome Statute particularly the inclusion of the definition and trigger mechanism for the crime of aggression.

Under the stocktaking track, States Parties, civil society organizations and other stakeholders engaged debate and discussions covering four topics, namely: the impact of the Rome Statute system on victims and affected communities, cooperation, complementarity, and peace and justice.

The Conference adopted a resolution by which it amended the Rome Statute so as to include a definition of the crime of aggression and the conditions under which the Court could exercise jurisdiction with respect to the crime.

"[T]he Conference approved the definition of aggression that emerged as a result of the work of the Special Working Group on the Crime of Aggression, together with two understandings (understandings 6 and 7) and Elements of Crimes.

The definition is comprised of two paragraphs, the first establishing that the crime of aggression 'means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations', the second providing a detailed seven-paragraph enumeration of acts that qualify as an act of aggression..."

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Usa - District Court affirms its dismissal of civil lawsuit brought by family members of wrongfully detained men who died at Guantánamo. (CCR). Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 17Nov10

On September 29th, 2010, the United States District Court for the District of Columbia affirmed its decision to dismiss Al-Zahrani v. Rumsfeld, a civil lawsuit brought by the Center for Constitutional Rights (CCR) and co-counsel concerning the deaths of three Guantánamo prisoners in June 2006.

The Court denied plaintiffs' motions for reconsideration despite newly-available evidence from soldiers stationed at the base at the time of the deaths that strongly suggest the men were killed at a black site at Guantánamo and a government cover-up of the true cause and circumstances of the deaths. The government reported the deaths as suicides.

The case, filed on behalf of the families of two of the deceased, Yasser Al-Zahrani of Saudi Arabia and Salah Ali Abdullah Ahmed Al-Salami of Yemen, charged the government and 24 federal officials with responsibility for the men's abuse, wrongful detention and ultimate deaths...

The case was initiated in the District Court for the District of Columbia on June 10, 2008, and the defendants subsequently moved to dismiss. On February 16, 2010, the district court granted the defendants’ motions and dismissed the case, holding that national security considerations prevented the court from hearing the families' claims...

Following the dismissal, the families filed a motion for reconsideration on the basis of the evidence from the soldiers, as reported by Scott Horton in Harper's Magazine in January 2010, arguing that the new facts compelled the court to reopen the case and they requested for permission to amend their complaint to incorporate the Newly-Discovered Evidence...